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§1.04 Filing Dependency Petition

[1] Child Detained
[2] Child Not Detained
[3] Contents
[4] Venue
[5] Jurisdiction
[6] Jurisdiction Retained

[1] Child Detained

If a child is taken into custody and not returned, the social worker must file a verified dependency petition in the juvenile court within 48 hours. If a petition is not filed, the child must be released within 48 hours, excluding noncourt days. [WIC §§290.1, 311(a), 313(a); CRC 5.670(b); In re Claudia E. (2008) 163 CA4th 627, 638.] The focus must always be on the safety, protection, and well-being of the child.

Tip How Would You Rule?

If the probation officer or social worker knows or has reason to know that the child taken into custody is an Indian child, notice must be given pursuant to the Indian Child Welfare Act (ICWA). [WIC §290.1(f); CRC 5.481.] You and the agency have an affirmative and continuing duty to inquire whether the child is or may be an Indian child if the child is at risk of entering foster care or is in foster care because Indian child custody proceedings must comply with ICWA requirements.  [WIC §§224(a), (b), 224.3(a); CRC 5.481; see Part 1, §1.05.]

  Tip

Circumstances that may provide reason to know a child is an Indian child may include, but are not limited to, any of the following [WIC §224.3(b); CRC 5.481(a)]:

  • The child, an officer of the court, a tribe, an Indian organization, a public or private agency, a member of the child’s extended family, or other person having an interest in the child provide information suggesting that the child is a member of a tribe or eligible for membership in a tribe, or at least one of the child’s biological parents, grandparents, or great-grandparents are or were a member of a tribe.
  • The residence or domicile of the child, Indian child’s parents, or Indian custodian is in a predominantly Indian community.
  • The child or child’s family has received services or benefits that are available to Indians from a tribe or federal government.

[2] Child Not Detained

If a child is not taken into custody but the social worker believes the child should be declared a dependent of the court, the social worker must file the petition in the juvenile court as soon as possible. [CRC 5.670(a).]

  Tip

[3] Contents

The contents of the dependency petition are prescribed by WIC §332. [See CRC 5.524(a), (c); forms JV-100, JV-101(A), JV-110, JV-120JV-129.]

[4] Venue

The proper venue for a dependency petition is [WIC §§17.1, 327; CRC 5.510(a), (b)]:

  • The county where the minor resides;
  • The county where the minor is found; or
  • The county in which acts take place or circumstances exist that are alleged to bring the child under WIC §300.

The county social services agency is entitled to amend a dependency petition to include evidence of incidents occurring outside county because concern for the child’s welfare necessarily requires the juvenile court to consider all information available. [In re Hadley B. (2007) 148 CA4th 1041, 1048.]

[5] Jurisdiction

The Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) [see FC §§3400 et seq] is the exclusive jurisdictional basis for determining child custody in California. [FC §3421(b).] It applies to dependency proceedings. [FC §3402(d); WIC §304; CRC 5.510(c), 5.620(a).] The act specifies the circumstances when a California court has jurisdiction to make an initial child custody determination [see FC §3421(a)], and when the court has temporary emergency jurisdiction [see FC §3424(a)]. The only requirements for emergency jurisdiction under the UCCJEA are the necessity to protect the child from immediate harm, and the presence of the child in the state. [In re Jorge G. (2008) 164 CA4th 125, 132–133.]

Due process guarantees apply to dependency proceedings. [In re Precious D. (2010) 189 CA4th 1251, 1261, citing In re A.S. (2009) 180 CA4th 351, 359.] The interests at stake are: (1) a parent’s interest in the companionship, care, custody, and management of his or her children; (2) a child’s interest in belonging to their natural family; (3) a child’s interest to live free from abuse and neglect in a stable, permanent placement with an emotionally committed caregiver; and (4) the government’s interest in the welfare of a child as a compelling state interest that a state has a duty to protect. [In re Precious D. (2010) 189 CA4th 1251, 1261, citing In re Dakota H. (2005) 132 CA4th 212, 222–223.]

Personal jurisdiction over the parents is not required to make a binding child custody determination, and a custody decision made in conformity with due process requirements is entitled to recognition by other states. [In re Marriage of Nurie (2009) 176 CA4th 478, 493.] Although the juvenile court takes jurisdiction over children, not parents, it also gains personal jurisdiction over a parent when the parent is properly noticed. [Kern County Dep’t of Human Servs. v. Superior Court (2010) 187 CA4th 302, 310.]

You must review UCCJEA’s requirements if it appears that the child currently or recently lived in another state, or that another state is exercising or previously exercised jurisdiction over the child. If you determine that a custody proceeding is pending in another state, you must stay the local proceeding and contact the judge in the other state. [FC §3426(b).]

You must also review grounds for subject matter jurisdiction over a child who is a foreign national. For example, if your court has no initial or emergency jurisdiction under the UCCJEA, a foreign national cannot be made subject to state juvenile dependency law simply because California offers better medical care than the home nation. [In re A.C. (2005) 130 CA4th 854, 868.]

[6] Jurisdiction Retained

Once dependency is established, the juvenile court does not automatically lose jurisdiction when the child attains the age of 18.  The court has discretion to retain jurisdiction over the child until age 21, and exercise of this discretion is warranted when there is a showing of existing and reasonably foreseeable future harm to the welfare of the child. [In re D.R. (2007) 155 CA4th 480, 486; WIC §303.] The court also retains jurisdiction over a legal guardianship selected as the permanent placement, even after the court terminates dependency jurisdiction. [WIC §366.4(a).]

On and after January 1, 2012, you may: (1) continue dependency jurisdiction of a foster child between the ages of 18 and 21 years old, and must require the agency to develop a plan for a permanent living arrangement of a placement under a mutual agreement; or (2) dismiss dependency if all case requirements are met and keep the nonminor within the general jurisdiction of the court until the nonminor attains 21 years of age without holding review hearings. [WIC §§366.31, 391, 11400 (u)–(v).] A nonminor who has not attained the age of 21 but exited foster care at or after the age of 18 may petition the court to resume dependency jurisdiction or to assume transition jurisdiction. [WIC §303(c); see WIC §§388(e), 450.]


   
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© 2006 by Judicial Council of California
updated as of January 1, 2012